Constitutional Court: witnesses in criminal cases entitled to a lawyer

The Constitutional Court has made public its Judgment from 30 September 2009 following a constitutional submission from Ihor Holovan asking for an official interpretation of the provisions of Article 59 of the Constitution. According to this article, “Everyone has the right to legal assistance. Such assistance is provided free of charge in cases envisaged by law. Everyone is free to choose the defender of his or her rights”.

Mr Holovan explained that there was no agreement among representatives of the Prosecutor, investigators, etc, as to whether this right also applies where a person is called as a witness or to give explanations to a State body. He considered that denial of such a right is a restriction of the constitutional right to legal assistance.

The Constitutional Court finds that “everyone” covers all persons without exception – Ukrainian nationals, foreign nationals and stateless persons who are in Ukraine. The exercising of this right cannot depend on the status of the person and the nature of his or her legal relations with other parties.”

The Court stresses that legal assistance has many aspects, is of different content, scope and form and may include consultations, explanations, the lodging of law suits and applications, complaints, etc.  It also points out that there are cases envisaged by law, involving for example protection of the rights of children, underage parents, as well as for defence in the case of prosecution, the relevant State bodies must provide the necessary legal assistance.

The Constitutional Court therefore finds that the provisions of Article 59 apply to every person regardless of the nature of their relations with the State bodies or bodies of local self-government, etc. Thus a person who is a witness in a case is entitled to legal assistance.

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